Criminalizing the Colonized: Ontario Native Women Confront the Criminal Justice System, 1920–60

Over the past decade, Aboriginal women's conflicts with the law and their plight within the penal and child welfare systems have received increasing media and government attention. Framed by the political demands of Native communities for self-government, and fuelled by disillusionment with a criminal justice system that has resolutely failed Native peoples–both as victims of violence and as defendants in the courts–government studies and royal commissions have documented the shocking overincarceration of Native women.¹ At once marginalized, yet simultaneously the focus of intense government interest, Native women have struggled to make their own voices heard in these inquiries. Their testimony often speaks to their profound alienation from Canadian society and its justice system, an estrangement so intense that it is couched in despair. "How can we be healed by those who symbolize the worst experiences of our past?" asked one inmate before the 1990 Task Force on federally sentenced women.² Her query invokes current Native exhortations for a reinvention of Aboriginal traditions of justice and healing; it also speaks directly to the injuries of colonialism experienced by Aboriginal peoples.

Although we lack statistics on Native imprisonment before the 1970s, overincarceration may well be a "tragedy of recent vintage."³ This article explores the roots of this tragedy, asking when and why overincarceration emerged in twentieth-century Ontario; how legal and penal authorities interpreted Aboriginal women's conflicts with the law; and in what ways Native women and their communities reacted to women's incarceration. Drawing primarily on case files from the Mercer Reformatory for Women, the only such provincial institution at the time,⁴ I investigate the process of legal and moral regulation that led to Native women's incarceration from 1920 to 1960. Admittedly, such sources are skewed towards the views of those in authority: inmate case files are incomplete and partisan, strongly shaped by the recorder's reactions to the woman's narrative. Arrest and incarceration statistics are also problematic: they homogenize all Native and Métis nations under the designation 'Indian,'⁵ and they predominantly reflect the policing of Aboriginal peoples and the changing definitions of crime. However partial, these sources reveal patterns of, and explanations for, increasing incarceration; women's own voices, however fragmented, are also apparent in these records, offering some clues to women's reactions to incarceration.⁶

Native women's criminalization bore important similarities to that of other women, who were also arrested primarily for crimes of public order and morality, who often came from impoverished and insecure backgrounds, and whose sexual morality was a key concern for the courts. The convictions of Aboriginal women are thus part of a broader web of gendered moral regulation articulated through the law–the disciplining of women whose behaviour was considered unfeminine, unacceptable, abnormal, or threatening to society. This "censuring" process of distinguishing the immoral from the moral woman was also sustained by the medical and social work discourses used within the penal system; these attitudes constituted and reproduced relations of power based on gender, race, and economic marginality.⁷ Granted, the law was one of many forms of regulation–accomplished also through the church, the school, and the family–but it remained an important one. As the "cutting edge of colonialism,"⁸ the law could enact the "final lesson" and perhaps the most alienating one for Aboriginal women: incarceration.

The experiences of Native women were also profoundly different from those of other women: they were shaped by racist state policies of "overregulation" linked to the federal Indian Act, by the racialized constructions of Native women by court and prison personnel, and by the cultural chasm separating Native from non-Native in this time period. In short, the legal regulation of these women was an integral component of the material, social, and cultural dimensions of colonialism.⁹

Native women's increasing conflicts with the law thus reflect overlapping relations of power, based on gender, class, and race. Masculinist and class-biased definitions of crime, already inherent in the criminal justice system, were further complicated by the relations of colonialism...